0001181431-12-040027.txt : 20120706 0001181431-12-040027.hdr.sgml : 20120706 20120706165619 ACCESSION NUMBER: 0001181431-12-040027 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20120706 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20120706 DATE AS OF CHANGE: 20120706 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PACER INTERNATIONAL INC CENTRAL INDEX KEY: 0001091735 STANDARD INDUSTRIAL CLASSIFICATION: ARRANGEMENT OF TRANSPORTATION OF FREIGHT & CARGO [4731] IRS NUMBER: 620935669 STATE OF INCORPORATION: TN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-49828 FILM NUMBER: 12951117 BUSINESS ADDRESS: STREET 1: 6805 PERIMETER DR CITY: DUBLIN STATE: OH ZIP: 43016 BUSINESS PHONE: 6149231400 MAIL ADDRESS: STREET 1: 6805 PERIMETER DR CITY: DUBLIN STATE: OH ZIP: 43016 8-K 1 rrd350609.htm Prepared By R.R. Donnelley Financial -- Form 8-K
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
Form 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported):  07/06/2012
 
Pacer International, Inc.
(Exact name of registrant as specified in its charter)
 
Commission File Number:  000-49828
 
Tennessee
  
62-0935669
(State or other jurisdiction of
  
(IRS Employer
incorporation)
  
Identification No.)
 
6805 Perimeter Drive
Dublin, OH 43016
(Address of principal executive offices, including zip code)
 
614-923-1400
(Registrant’s telephone number, including area code)
 
(Former name or former address, if changed since last report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[  ]   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[  ]   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[  ]   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

[  ]   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 

 
Item 1.01.    Entry into a Material Definitive Agreement
 
On July 6, 2012, Pacer International, Inc. (the "Company") entered into a First Amendment (the "Amendment") to its Second Amended and Restated Credit Agreement dated December 30, 2010 (the "Credit Agreement").
The Amendment amends the Credit Agreement to, among other things, (1) reduce the margin applicable to borrowings under the facility by 25 basis points on base rate loans and by 100 basis points on Eurodollar rate loans, (2) reduce the letter of credit fees by 100 basis points, (3) reduce the commitment fee payable on the unused portion of the facility to a rate per annum ranging from 0.375% to 0.250% (down from a range of 0.625% to 0.375%), and (4) extend the maturity date from December 20, 2015 to July 6, 2017. Based upon the Company's total outstanding borrowings as a percentage of the aggregate commitments of the lenders and its average quarterly availability as of June 30, 2012, under the Amendment, the commitment fee would decline from 0.375% to 0.250% and letter of credit fees would decline from 2.75% to 1.75%. As of June 30, 2012, the Company had no borrowings outstanding under the facility and outstanding letters of credit of $11.6 million. Through December 31, 2012, the Amendment provides that the applicable margin on base rate loans and Eurodollar loans will be 0.75% and 1.25%, respectively. Under the Amendment, the applicable margins will no longer be subject to further reduction based on the Company's fixed charge coverage ratio.
The Amendment is attached hereto as Exhibit 10.1. The description of the Amendment above is qualified in its entirety by reference to the full text of the Amendment and the related security agreement.
 
 
Item 9.01.    Financial Statements and Exhibits
 
The following exhibits are filed as part of this report:
Exhibit 10.1             First Amendment, dated July 6, 2012, to the Second Amended and Restated Credit Agreement dated December 30, 2010 made by Pacer International, Inc., each of its domestic subsidiaries, the lenders from time to time party thereto, the issuers of letters of credit from time to time party thereto, and Bank of America, N.A., as Swing Line Lender and Administrative Agent, Wells Fargo Capital Finance, LLC, as Co-Agent and Joint Bookrunner, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Sole Lead Arranger and Joint Bookrunner.
 

 

SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
           
Pacer International, Inc.
 
 
Date: July 06, 2012
     
By:
 
/s/    John J. Hafferty
               
John J. Hafferty
               
Executive Vice President and Chief Financial Officer
 
 

 

EXHIBIT INDEX
 
Exhibit No.
  
Description
EX-10.1
  
First Amendment, dated July 6, 2012, to the Second Amended and Restated Credit Agreement dated December 30, 2010
EX-10 2 rrd350609_38038.htm FIRST AMENDMENT, DATED JULY 6, 2012, TO THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED DECEMBER 30, 2010 DC12432.pdf -- Converted by SEC Publisher 4.2, created by BCL Technologies Inc., for SEC Filing

Execution Version

FIRST AMENDMENT TO CREDIT AGREEMENT

     THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated as of July 6, 2012 (this “Amendment”), is entered into among PACER INTERNATIONAL, INC., a Tennessee corporation

(“Pacer”), each of Pacer’s Domestic Subsidiaries identified as a “Borrower” on the signature pages hereto (together with Pacer, collectively, the “Borrowers” and individually, a “Borrower”), each of Pacer’s Domestic Subsidiaries identified as a “Guarantor” on the signature pages hereto, the Lenders identified on the signature pages hereto and BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”).

PRELIMINARY STATEMENTS

     The Borrowers, the Lenders and the Administrative Agent are parties to that certain Second Amended and Restated Credit Agreement dated as of December 30, 2010 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).

     The Borrowers have requested that the Administrative Agent amend the Credit Agreement as more specifically set forth herein and, subject to the terms and conditions set forth herein, the Administrative Agent and each of the Lenders party hereto have agreed to grant such requests of the Borrowers.

     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

     1. Defined Terms. Except as otherwise provided herein, all capitalized undefined terms used in this Amendment (including, without limitation, in the introductory paragraph and the preliminary statements hereto) shall have the meanings assigned thereto in the Credit Agreement (as amended by this Amendment).

2.      Amendments.
 
  (a) New Definition. The following new definition is added to Section 1.1 of the
 

Credit Agreement in alphabetical order to read in its entirety as follows:

“First Amendment Effective Date” means July 6, 2012.

     (b) Amended Definitions. The following definitions in Section 1.1 of the Credit Agreement are hereby amended and restated in their entirety to read as follows:

     “Applicable Rate” means (a) with respect to a commitment fee, the following percentages per annum, based on the average Total Outstandings (as a percentage of the Aggregate Commitments):

Average Total Outstandings (as a percentage of the     
Aggregate Commitments)     
    Commitment Fee 
50%    0.375% 
>50%    0.250% 

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and (b) with respect to all other fees and rates of interest, the following percentages per annum, based on the Average Quarterly Availability as a percentage of the Borrowing Base:

Pricing    Average    Letter of    Eurodollar     
Level    Quarterly    Credit Fee    Rate    Base Rate 
    Availability             
I    30%    2.25%    2.25%    1.25% 
II    >30% but 60%    2.00%    2.00%    1.00% 
III    >60%    1.75%    1.75%    0.75% 

Notwithstanding the foregoing, from the First Amendment Effective Date until December 31, 2012, the Applicable Rate shall be determined as if Pricing Level III were applicable. Thereafter, the Applicable Rate shall be subject to reduction or increase, as applicable and as set forth in the table above, on a quarterly basis according to Average Quarterly Availability. Except as expressly set forth below in this definition, any such increase or reduction in the Applicable Rate provided for herein shall be effective on the first day of each fiscal quarter and shall be based upon the Average Quarterly Availability for the prior fiscal quarter as set forth in the certificate delivered for such prior fiscal quarter pursuant to Section 8.01(c). If the Administrative Agent has not received a certificate from the Borrowers setting forth the Average Quarterly Availability for any fiscal quarter within the time period specified by Section 8.01(c), then the Applicable Rate for any succeeding fiscal quarter shall be determined at Pricing Level I until such time as such certificate is received for such fiscal quarter; provided, however, that nothing herein shall be deemed to prevent the Administrative Agent and Lenders from charging interest at the Default Rate at any time that an Event of Default exists.

     “Maturity Date” means July 6, 2017; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

     3. Conditions to Effectiveness. This Amendment shall be effective as of the date hereof (the “Effective Date”) upon satisfaction of each of the following conditions:

     (a) Executed Amendment. The Administrative Agent shall have received counterparts of this Amendment executed by the Borrowers, the Guarantors, the Lenders and the Administrative Agent.

     (b) Secretary’s Certificate. The Administrative Agent shall have received a certificate of a Secretary or Assistant Secretary of each Loan Party certifying as to the incumbency and genuineness of the signature of each officer of such Loan Party executing this Amendment to which it is a party and certifying that attached thereto is a true, correct and complete copy of (i) the articles or certificate of incorporation or formation of such Loan Party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation or formation (or certifying that there have been no changes to the versions provided to the Administrative Agent on the Closing Date), (ii) the bylaws or other governing document of such Loan Party as in effect on the First Amendment Effective Date (or certifying that there have been no changes to the versions provided to the Administrative Agent on the Closing Date) and (iii) resolutions duly adopted by the board of directors (or

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other governing body) of such Loan Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment.

     (c) Amendment Fees. The Borrowers shall have paid to the Administrative Agent (or its applicable affiliate) an amendment fee of $200,000 for the account of each Lender in accordance with its Applicable Percentage.

     (d) Other Fees and Expenses. The Administrative Agent shall have been paid all other fees owed to it and reimbursed for all reasonable, invoiced out-of-pocket costs and expenses incurred by the Administrative Agent in connection with this Amendment, including the reasonable, invoiced fees and disbursements of counsel for the Administrative Agent.

     4. Post Closing. Within 5 days after the Effective Date, The Administrative Agent shall have received counterparts of that certain Memorandum of First Amendment to Credit Agreement executed by the Borrowers, the Guarantors and the Administrative Agent, for filing with the Surface Transportation Board.

     5. Effect of the Agreement. Except as expressly provided herein, the Credit Agreement and the other Loan Documents shall remain unmodified and in full force and effect. Except as expressly set forth herein, this Amendment shall not be deemed (a) to be a waiver of, or consent to, a modification of or amendment of, any other term or condition of the Credit Agreement or any other Loan Document, (b) to prejudice any other right or rights which the Administrative Agent or the Lenders may now have or may have in the future under or in connection with the Credit Agreement or the other Loan Documents or any of the instruments or agreements referred to therein, as the same may be amended, restated, supplemented or otherwise modified from time to time, (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with the Borrowers or any other Persons with respect to any waiver, amendment, modification or any other change to the Credit Agreement or the Loan Documents or any rights or remedies arising in favor of the Lenders or the Administrative Agent, or any of them, under or with respect to any such documents or (d) to be a waiver of, or consent to or a modification or amendment of, any other term or condition of any other agreement by and among any Loan Party, on the one hand, and the Administrative Agent or any other Lender, on the other hand. References in the Credit Agreement to “this Amendment” (and indirect references such as “hereunder”, “hereby”, “herein”, and “hereof”) and in any Loan Document to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby.

     6. Representations and Warranties/No Default. By their execution hereof, each Loan Party hereby represents and warrants as follows:

     (a) Such Loan Party has the right, power and authority and has taken all necessary corporate and other action to authorize the execution, delivery and performance of this Amendment and each other document executed in connection herewith to which it is a party in accordance with their respective terms.

     (b) This Amendment and each other document executed in connection herewith has been duly executed and delivered by its duly authorized officers, and each such document constitutes the legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies.

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CHL:56152.4

     (c) Each of the representations and warranties set forth in the Credit Agreement and the other Loan Documents is true and correct in all material respects as of the date hereof (except to the extent that (i) any such representation or warranty that is qualified by materiality or by reference to Material Adverse Effect, in which case such representation or warranty is true and correct in all respects as of the date hereof or (ii) any such representation or warranty relates only to an earlier date, in which case such representation or warranty shall remain true and correct as of such earlier date).

     (d) No Default or Event of Default has occurred or is continuing or would result after giving effect to the extension and the other transactions contemplated by this Amendment.

     7. Reaffirmations. Each Loan Party (a) agrees that the transactions contemplated by this Amendment shall not limit or diminish the obligations of such Person under, or release such Person from any obligations under, the Credit Agreement and each other Loan Document to which it is a party, (b) confirms and reaffirms its obligations under the Credit Agreement and each other Loan Document to which it is a party and (c) agrees that the Credit Agreement and each other Loan Document to which it is a party remain in full force and effect and are hereby ratified and confirmed.

8.      Miscellaneous
 
  (a) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
 

CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. Without limiting the general applicability of the foregoing and the terms of the other Loan Documents to this Amendment and the parties hereto, the terms of Section 11.14 of the Credit Agreement are incorporated herein by reference, mutatis mutandis.

     (b) Loan Document. This Amendment shall constitute a “Loan Document” under and as defined in the Credit Agreement.

     (c) Counterparts; Electronic Execution. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Amendment

     (d) Severability. If any provision of any of this Amendment is determined to be illegal, invalid or unenforceable, such provision shall be fully severable and the remaining provisions shall remain in full force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable provisions.

     (e) Entirety. This Amendment, the other Loan Documents and the other documents relating to the Obligations represent the entire agreement of the parties hereto and thereto, and supersede all prior agreements and understandings, oral or written, if any, including any commitment letters or correspondence relating to the Loan Documents, any other documents relating to the Obligations, or the transactions contemplated herein and therein.

[Remainder of page intentionally blank.]

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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.

BORROWERS AND GUARANTORS:    PACER INTERNATIONAL, INC. 
    INTERMODAL CONTAINER SERVICE, INC. (D/B/A 
    HARBOR RAIL TRANSPORT) 
    MANUFACTURERS CONSOLIDATION SERVICE 
    OF CANADA, INC. 
    PACER CARTAGE, INC. 
    PACER CONTAINER LINE INC. 
    PACER TRANSPORTATION SOLUTIONS, INC. 
    PACER STACKTRAIN, INC. 
    PACER TRANSPORT, INC. 
    RAIL TO RAIL TRANSPORT, INC. 
    S & H TRANSPORT, INC. 
    PACER SERVICES, INC. 
    By: /s/ John J. Hafferty 
    Name: John H. Hafferty 
    Title: CFO 
 
    CTP LEASING, INC. 
    By: /s/ John J. Hafferty 
    Name: John H. Hafferty 
    Title: President 

Pacer International, Inc.
First Amendment to Credit Agreement

CHL:56152.4

OCEAN WORLD LINES, INC.

RF INTERNATIONAL, LTD.

S & H LEASING, INC.

OWL AIR, INC.

By: /s/ Susan G. Borelli
Name: Susan G. Borelli
Title: President

PACER DISTRIBUTION SERVICES, INC

PDS TRUCKING, INC.

  By: /s/ Michael Stark
Name: Michael Stark
Title: President

Pacer International, Inc.
First Amendment to Credit Agreement

CHL:56152.4

ADMINISTRATIVE AGENT:

BANK OF AMERICA, N.A.

By: /s/ William DiCicco
Name: William DiCicco
Title: Vice President

LENDERS:    BANK OF AMERICA, N.A., as a Lender, as an L/C Issuer and 
    as Swing Line Lender 
 
By: /s/ William DiCicco
    Name:    William DiCicco 
    Title:    Vice President 

WELLS FARGO CAPITAL FINANCE, LLC, as a Lender and as an L/C Issuer

By: /s/ Willis A. Williams
Name: Willis A. Williams
Title: Vice President

Pacer International, Inc.
First Amendment to Credit Agreement

CHL:56152.4